Citation Nr: 0107914
Decision Date: 03/16/01 Archive Date: 03/21/01
DOCKET NO. 00-04 984 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a rating in excess of 10 percent for a
psychiatric disorder currently diagnosed as a generalized
anxiety disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Acosta, Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to October
1945, as a member of the United States Marine Corps, and his
service medical records suggest that he may have been
involved in combat for more than a year.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1999 rating decision of
the Department of Veterans Affairs (VA) Montgomery, Alabama,
Regional Office (RO).
REMAND
The veteran contends that his service-connected psychiatric
disorder is sufficiently severe as to warrant a 30 percent
rating. He also has indicated that he believes that his
psychiatric disorder has been misdiagnosed, and that the
correct diagnosis is that of PTSD. After a review of the
evidentiary record, the Board is of the opinion that
additional development should be undertaken prior to
appellate review. In particular, it is noted that this case
needs to be reviewed and re-adjudicated by the RO in
accordance with the provisions of the newly-enacted Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107), which was signed by the
President on November 9, 2000, while this appeal was pending.
The VCAA in essence requires that VA undertake any additional
development that may be necessary to substantiate a veteran's
claim for VA benefits, regardless of whether the claim is
well grounded or not. The additional development may include
securing any additional evidence identified by the claimant,
and requesting a medical examination and a medical opinion,
when necessary. Also, the VCAA imposes upon VA certain
additional notice duties. Id.
In the present case, the record shows that the veteran was
examined by VA in September 1999, and that the physician who
examined the veteran opined that the veteran was currently
anxious, and suffering from a generalized anxiety disorder.
The Board notes that most of the criteria required by
regulation for a grant of a 30 percent rating for a service-
connected mental disorder were noted by the examiner not to
be present in the veteran. However, the veteran argued, in
his Substantive Appeal, that the September 1999 VA
examination was inadequate and that its report did not
reflect properly the severity of his mental disorder, which,
as noted above, the veteran felt should actually be
considered as PTSD, secondary to combat stressors.
The Board is of the opinion that, in light of the above
mentioned recent enactment of the VCAA, and also taking into
consideration that the original grant of service connection
in this case in 1945 was for psychosis, the veteran should be
re-examined, in order to clarify the actual diagnosis that is
warranted in his case, as well as the current severity of his
symptoms, particularly since, as noted earlier, the veteran
served in the Marine Corps, and his service medical records
suggest actual combat duty. Regarding the need to clarify
the diagnosis that is warranted in this case, the Board notes
that 38 C.F.R. § 4.125(b) provides the following:
If the diagnosis of a mental disorder is
changed, the rating agency shall
determine whether the new diagnosis
represents progression of the prior
diagnosis, correction of an error in the
prior diagnosis, or development of a new
and separate condition. If it is not
clear from the available records what the
change of diagnosis represents, the
rating agency shall return the report to
the examiner for a determination.
38 C.F.R. § 4.125(b).
It is the opinion of the Board that a decision by the Board
at this time would be potentially prejudicial to the veteran,
and a remand is thus required. See Bernard v. Brown, 4 Vet.
App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24,
1992) (published at 57 Fed. Reg. 49,747 (1992)).
Accordingly, this case is remanded for the following
additional development:
1. The RO should schedule the veteran
for a VA mental disorders examination.
The examiner should be asked to review
the pertinent evidence in the file prior
to the examination (to include the
veteran's service medical records and the
September 1999 VA mental disorders
examination report), request, and
thereafter interpret, any necessary tests
and studies, examine the veteran, and
render a comprehensive, legible medical
examination report that should contain,
as a minimum, the following information:
A. A statement as to whether he or
she reviewed the claims file prior
to the examination.
B. His or her opinion as to what is
the proper diagnosis in this
particular case. If he or she is of
the opinion that a diagnosis other
than the current anxiety disorder
(such as the claimed PTSD) is
manifested, the examiner should then
indicate, in accordance with
38 C.F.R. § 4.125(b), whether the
diagnosis represents (1) the
progression of the service-connected
anxiety disorder, (2) the correction
of an error in the prior (original)
diagnosis, or (3) the development of
a new and separate mental condition.
Thereafter, the examiner should
express an opinion regarding the
current severity of the service-
connected anxiety disorder and any
additional psychiatric diagnosis
felt to represent a progression of
the service-connected anxiety
disorder or the correction of an
error in that diagnosis:
Specifically, the examiner should
provide an assessment of the current
degree of occupational and social
impairment, with references to any
symptoms shown to be currently
manifested, including depression,
anxiety, suspiciousness, panic
attacks, chronic sleep impairment,
and memory loss. A Global
Assessment of Functioning (GAF)
score is also requested.
The examiner should be asked to discuss
in his or her report of medical
examination the rationale for all of his
or her opinions and conclusions.
2. After all the above development has
been completed, and all newly-produced
evidence has been associated with the
file, the RO must review the claims file
and ensure that all notification and
development action required by the VCAA is
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are fully
complied with and satisfied. For further
guidance on the processing of this case in
light of the changes in the law, the RO
should refer to VBA Fast Letters 00-87
(November 17, 2000), 00-92 (December 13,
2000), and 01-02 (January 9, 2001), as
well as any pertinent formal or informal
guidance that is subsequently provided by
VA, including, among other things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent court
decisions that are subsequently issued
also should be considered.
3. Thereafter, the RO should re-
adjudicate the claim. If, upon re-
adjudication, the benefit sought on appeal
remains denied, both the veteran and his
representative should be provided with a
supplemental statement of the case (SSOC).
The SSOC must contain notice of all
relevant actions taken on the appealed
claim for benefits, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified, but he is nevertheless hereby reminded
that he has the right to submit additional evidence and
argument on the matter that the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).